Does the Chad Evens case represent how the English legal system deals with victims of rape related to alcohol?

Abstract

In the UK, rape laws underwent some major changes in 2003. The changes were effected in order to provide dignity to the rape victim, by not allowing her victimization during the trial. Issues of victim consent in an adversarial rape trial were to be argued not on the basis of her sexual history, allegations of promiscuity and lifestyle choices, such as drinking. However, the Chad Evans case has opened new questions about the effectiveness of the new laws in protecting the rape victims from victimization during the rape trial. This research critically analyses the English legal system’s responses to rape victims in the light of the Chad Evans case.

Overview

The Chad Evans case opens up new questions regarding how rape related to alcohol victims is perceived and the effect that the victim’s sexual history may have on the outcomes of the rape trial. The UK has made some efforts to prevent the victimization of rape victims by passing legislation and improving criminal justice processes involved in rape trials. However, the Chad Evans case shows that there are still possibilities of the victim’s sexual past having an impact on the outcomes. The issue of a woman’s consent in rape trials does get impacted by her sexual behaviour in the past (as the Chad Evans case shows). If the victim was drunk at the time, it may have an adverse impact on the trial’s outcome from the perspective of the victim. R v Evans and McDonald,was a case involving the rape of a woman by two football players, Chad Evans and Clayton McDonald. Although Evans was convicted of the rape, McDonald was acquitted. On appeal to the Court of Appeal, Evans also was acquitted and the Court of Appeal ordered a retrial based on new evidence.

The victim was a 19 year-old waitress, who admitted to have had some alcohol, although she denied that she was drunk at the time. However, the sample taken from her showed traces of cocaine and cannabis, which she denied having taken. She had no memory of the night and did not realise how she had landed up at the hotel room.

The entire case hinged upon the matter of consent. The prosecution alleged that as the victim was too drunk at the time, she did not give consent. The defence contended that the accused had consensual sex with the victim.

Evans’ retrial in October 2016 resulted in his acquittal on the basis of evidence given by other men who testified to similar sexual behaviour of the victim with them.

This study involves a critical and analytical research on the responses of the English legal system to victims of rape related to alcohol in light of the Chad Evans case.

Significance of research and issues

British rape laws and the rules relating to rape trials within the criminal justice system were amended in order to prevent the victimization of the rape victim by an institutional process, which was found to be lacking in the feminist perspective. In particular, victim blaming was seen to be prominent in rape cases. In fact, it would not be wrong to say that victim blaming was institutionalized and seen even in court processes. The ‘Ipswich rape trial’ is an example of institutionalized prejudice against rape victims, with the trial judge blaming the victim for contributory negligence in her rape as she was hitchhiking at the time. The judge went so far as to say that the case was a “tragedy for the defendant”. Although this case does not relate to alcoholism, it does depict the problems that are faced by rape victims during rape trials. In 2003, major changes were made to the law to prevent this however, as the Chad Evans case shows, not much may have changes when it comes to perceptions about the rape victim’s character and how these perceptions may impact the outcomes of the case.

The central issue involved in the research is the critical analysis of the current rape laws in the UK and whether there is a positive change in the legal process with respect to victims of rape. This will be studied and analysed in light of the decision in Chad Evans case.

Research methodology

The research will be conducted in the tradition of descriptive research methodology. Descriptive research allows the researcher to obtain information, without having to test or verify the information. This can be done after identifying a research question. As the research question has been identified, it will help the researcher to carry out a descriptive research. The research methodology would allow the researcher to gather information about the existing conditions. The information will be collected through secondary research methods. The research strategy involved will include searching for papers both manually as well as electronically. Journals in both print as well as electronic formats will be referred to.

Literature review

In rape trials, consent is an important issue, as it is the difference between rape and consensual sex. Intoxication and consent have a difficult interrelationship. While it is true that intoxication vitiates consent, it also may create a negative perception about the victim. In case of voluntary intoxication, matters do become difficult. An example is R v Bree, the court stated to the jury that a “drunken consent is still consent,” advising it to decide the matter on the issue of whether the victim had temporarily lost her capacity to consent. The basic premise is that if the sexual activity is consented to by two adults, then it is not a rape. In Bree’s case, the victim alleged that she had not given consent, but the defendant said otherwise. As the victim had voluntarity drunk a large amount of liquor, the defendant was acquitted as the jury decided that even though the victim was drunk, she had consented to sex.

The Sexual Offences Act 2003, s.74 defines consent as follows:

a person consents if he agrees by choice, and has the freedom and capacity to make that choice.

The important words here are ‘freedom’ and ‘capacity’. This shows that if there is an element of force or coercion, then the person has not given free consent. Also, if the person was intoxicated at the time, consent is vitiated by lack of capacity. Under the new law, the court presumes absence of consent. The burden of proof is reversed and the defendant has to prove to the court that he received consent.

Till as late as 2003, rape trials in the showed a high attrition rate. It was difficult to prove non-consent by the victim. The adversarial system within which raoe trials were conducted, was in favour of the accused as the burden of proof was on the prosecution for proving non-consent. Questions about victims’ sexual behaviour history were commonly asked during trial.

The Sexual Offences Act 2003, was enacted to correct the above-mentioned problems in the criminal justice system. Importantly, it sought to protect the dignity of the victims of rape. In this research, these reforms will be discussed.

The Sexual Offences Act 1956 and common law dating back more than a century was used earlier in rape trials and there were many problems in these laws. An example can be found in Morgan v DPP, in which the court laid down the mistaken belief clause for acquitting accused even if the consent may have been unreasonable.

The European Convention of Human Rights (ECHR) and the Human Rights Act 1998 (HRA 1998), put the duty on the state and government to protect the rights of rape victims, with courts having the principal responsibility to enforce human rights.. The European Court of Human Rights in X and Y v The Netherlands and M.C. v Bulgaria held the states liable for not passing rape legislation in tune with the Convention rights.

The White Paper, ‘Justice for All’, by the government led to the enactment of the SOA 2003. Even prior to the 2003 reforms, certain changes had been Since September 2000 defendants were not allowed to cross-examine rape victims personally. This ensured that rape victims were saved from the ordeal of being questioned by the accused. Sexual history of the rape victim could not be brought up in court. Yet, in Chad Evans case, his defence was able to find a loophole in the current law, to allow testimony by the victim’s past sexual partners.

It is also important to consider that victim precipitation leads to putting the blame on the victim. Feminist criminology theorists such as Carol Smart have criticized this approach for overlooking the victimization of female rape victims.

Victim precipitation and its criticism was also responsible for the reformation of the law and judicial process, so as to give support to rape victims and make the court process more empathetic to their problems and needs.

Victimology approaches are also important because a lot of reform in UK rape laws have come from these approaches. The Sexual Offences Act 2003, which was implemented in 2004 is itself is an example of the coming together of social and academic processes to bring about pressure to change the way law perceived rape victims. The law forbids asking victims about their previous sexual experiences as such questions were pointedly asked by defence counsel to prove promiscuity on part of the victims and consent to sexual relations with the offender

Though law has changed, perceptions about rape victims, have not changed as much. Due to these perceptions, many rape victims fear to report the crime.

A lot of literature is available on the issue of consent of victims in the rape trials. However, there is paucity of research on a post rape law changes and how effective they are in protecting the dignity of rape victims in rape trials.

Challenges

The challenge that might come in conducting the research would be in the collecting of information from rape trials as some of the cases are unreported. However, the researcher may be able to surpass this problem by reference to secondary sources such as text books and articles in the journals.

Observations

At this preliminary stage, the researcher has not been able to formulate the observations or conclusions.

Conclusion

This is an important area of research because it involves the critical analysis of the existing rape laws, which have undergone a major change in 2003, but are still unable to prevent prejudice against the rape victim based upon her sexual history or life style choices. If the victim happened to be intoxicated at the time of the rape, that may go against her in proving non-consent, as the Evans case shows. However, the motivation for passing the new reforms in 2003 was quite the reverse of that outcome. The researcher hopes to identify the areas in the new reforms that have made such an outcome possible despite the opposite motivation of protecting a rape victim’s dignity.

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